### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-15-00374- CV

Jam ar Osborne, Appellan t

v.
Warre n Kenneth P axton, Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 201 ST JUDICI AL DISTRICT NO. D-1 -GN-1 4-0 0469 4, H ONO RAB LE STEP HEN Y ELENOSK Y , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

Pro se appellant J amar Osborne was the Gre en Party ’s candida te for Texas Attorney
Gene ral in 2014. He ran ag ainst appellee Warren Kenne th Pax ton, who won the elec tion, and two 1
other candida

tes; all three of Osborne’ s opponents wer e licensed attorney s and members of the State

Ba r of Texas. I n November 2014, Osborne filed suit seeking a decla ration that Pax ton and the other

two candida

tes wer e constitutionally ineligible to be Attorney Gene ral. He asser ted that (1) Pax ton
and the other candida tes wer e “def acto members of the judiciary ” beca use they are attorney s licensed by the State Ba

r of Texas, (2) the Texas Constit ution bars a member of the judicial branc h from
“exerci s ing any power ” attache d to one of the other two branc hes of g overnme nt, (3) the Texas Attorney Gene ral is an executive office r, and (4) Pax ton and t h e o t h er candida tes wer e there fore ineligible to serve as Attorney Gene ral. He further contende d that it was a conflict of interest for an

Pax ton is curre ntly

serving as Texas Attorney

Gene ral. 1attorney to serve as an executive office r and that it “violates the separ ations [si c] of power s doctrine

for the judiciary to exercise tax authority [i n t h e fo rm o f d u es paid to the State Ba r] over the
executive branc h.” I n a supplemental petition, Osborne added an asser tion that Pax ton took his oath
of office shortly befor e the 2015 leg islative session beg an and befor e the Speaker of the House
decla red the winner of

the elec tion and that the oath thus w as prema ture and invalid. Paxt on filed two motions for summary judgme nt, one in response to eac h of Osborne ’s petitions.
The trial court held a hear ing and g rante d summary judgme nt for Pax ton, dismiss ing
Osborne’ s claims. Osborne appea ls, contending that the court err ed in g ranting summary judgme nt
in favor of

Pax ton. We affir

m the trial court’ s g rantingof summary judgme nt. 2

As a preliminary matter, Osborne is incorre ct that i t wa s err or to g rant summary judgme nt beca

use Pax ton filed a g ener al denial and did not prese nt summary judgme nt ev idence

. T he filing of a g ener al denial simply puts in issue all of a plaintiff’s alleg ations and require s the plaintiff to prove his case
. See Tex. R. Civ. P. 92; Frymire Eng’g Co. v. Grantham , 524 S.W .2d 680,
680-81 (Tex. 1975). I t does not prec lude a defe ndant from moving for summary judgme nt if there
is no fac tual dispute and if, as a re sult of t hose facts, the pl aintiff’s claims must fail as a matter of
law. There is no dispute that Pax ton is an attorney licensed in Texas, that Osborne is not so licensed,
that Pax ton rec eived the most votes in the elec tion, and that the Offic e of the Attorney Gene ral is a part of the executive branc h. Thus, summary judgme nt was proper if Pax ton showed as a matter of
law that an attorney is not constitutionally barr ed from holding the office of Texas Attorney Gene ral

Osborne states in the opening portion of his brief that the trial court also err ed in g ranting 2 summary judgme nt without first allowing Osborne to conduct discovery , but he never prese nts this arg ument in the body

of his brief.
2simply by holding a license issued by the State B ar. See D evoe v. Gre at Am. Ins. , 50 S.W .3d 567,
570 (Tex. App.—Austin 2001, no pet.) (if “per tinent fac ts” are und i s p u t ed , co urt of appea ls can
deter mine propriety of g ranting of summary judgme nt as matter of law); Blass v. Hanove r Am. Ins.
Co. , No. 03-98-00657- CV, 1999 WL 699837, at *1 (Tex. App.—Austin Sept. 10, 1999, pet. denied) (not desig nated for publication) (“The p ar t i es do not dispute the materia l fac ts of this case
. Consequently , the issue pre sented on a ppeal is pure ly

a leg al matter.” ).
Osborne arg

ues that a licensed attorney is “of” the J udicial De p ar t m ent and thus
barr ed by the separ ation-of- power s clause from assuming the executive office of Attorney Gene ral
of Texas. See Tex. Const. art. I V, § 1 (Attorney Gene ral is executive office r). We disag ree with the

asser tion that attorney s are part of the J udicial Depa rtment.
The separ ation-of- power s doctrine arises from article I I , section 1 of the constitution,
which states:

The power s of t h e Go v er n m ent of the State of Texas shall be divided into three distinct depar t m en t s , each of which shall be confide d to a separ ate body of mag istracy , to wit: Those which are L eg islative to one; those which are Ex ecutive to another , and those which are J udicial to another ; and no person, or collection of persons, b ei n g of one of these depar tments, shall exercise any power proper ly attache d to either of the others, except in the instance s here in expressly permitted.

Id

. art. I I , § 1. “S ep aration of power s principles are violated when one g overnme nt depar tment

assumes a power that is more ‘prope rly attache d’ to anot her branc h or when one branc h unduly
interfe res with another branc h so that the other branc h cannot eff ectively exercise its constitutionally assig ned powe rs.” Matche tt v. State , 941 S.W .2d 922, 932 (Tex. Crim. App. 1996).

3The “Judi cial Depa rtment” is define d b y article V, and section 1 states that “[t] he judicial power of this State shall be vested in one Supreme Court, in one Court of Criminal Appea ls,
in Courts of Appea ls, in District Courts, in County Courts, in Com missioners Courts, in Courts of

J ustices of the Peace , and in such other courts as may be provided by law.” Id. art. V, § 1. J udicial 3

power is the power “to hear fac ts, to decide issues of fac t made by pleading s, to decide questions of
law involved, to rende r and enter judgme nt on fac ts in acc ord an ce wi t h law as deter mined by the
court, and to execute judgme nt or sentenc e.” Holmes v. Morales , 924 S.W .2d 920, 923 (Tex. 1996); Kelley v. State , 676 S.W

. 2 d 104, 107 (Tex. Crim. App. 1984). Whether an office is a part of the judicial depar

tment depends on whether the office wields judicial power , and “sec tion 1, Article V specific ally

vests the judicial power

in the courts.” Holmes , 924 S.W .2d at 922. Although a

n attorney is an “off icer of the c ourt,” see Ex parte Norton , 191 S.W .2d 713, 716 (Tex. 1946), and must be licensed by the State Ba r in order to prac tice law in Texas, this 4
does not le ad to a conclusion that a licensed attorney is a member of the judiciary as contemplated

Article V does not discuss attorney s in ge nera l and instead a ddresse s the structure of the 3 court sy stem; descr ibes the jurisdictions of the various courts; states that justices, judge s, district and county cler

ks, county and district attorney s, and sheriff s are to be elec ted and provides term leng ths for those office s; and sets out qualifica tions for just ices, j u d ges , cl er ks, and jurors. See generally Tex. Cons t. art. V.
The licensing and discipline of attorney s is g overne d by the State Ba r of Texas, which aids 4 “the judicial depar

tment’s power s under the constitution to reg ulate the prac tice of law,” is under the administrative control of the Texas Supre me Court, and is included in the “Judi cial Br anch” in the g overnme nt code. Tex. Gov’t Code §§ 81.011, .051 .071; see also State Bar v. Gomez , 891 S.W .2d 243, 245 (Tex. 1994) (s u

p r e me c ourt’s power s to reg ulate prac tice of law “ar e administrative power s, nece ssary to the prese rvation of t h e judiciary ’s independe nce and integ rity ”); see generally Tex. Gov’t Code §§ 81.001-84.004 ( title 2, “J udicial B ranc h,” subtitle G, “Attorne y s”).
4by article I I

. Attorney s do not hear fac t s , d et er m i n e issues of fac t or law, rende r judgme nt, or 5

execute judgme nts. I nstead, they repr esent litigants in proce eding s befor e the judiciary , draf t leg al documents, and otherwise repr esent their clients’ interests. See, e.g. , In re El Paso Healthcare Sys.,
Ltd. , 225 S.W .3d 146, 152 (Tex. App.—El P aso 2005, orig

. proce eding ). The Texas Supreme
Court’s opinion in Holmes , stating that district attorney s are not part of the judiciary despite that
office being addre ssed in article V, supports our conclusion: “the Texas Constit ution invests no judicial power in that office ” and district attorney s have no power to hear fac ts, decide issues of
fac t and law, r ender

judgme nt, or execute judg ments or sentenc es. See 924 S.W .2d at 922-23. I f 6

a d i s t rict attorney ’s office is not part of the judiciary , cer tainly an attorney is not a part of the judiciary simply by wont of being licensed by the State Ba r. See id. ; see also United States v. Ray , 375 F.3d 980, 996 (9th Cir. 2004) (U.S. Attorney ’s fulfilling duties owed as office r of court did not
im p a ir a b il it y to a c c o mp li s h r e s p o n s ib il it ie s a s me mb e r o f e xe c u ti v e b r a n c h , a n d o r d e r in g h im to a s s is t
in ju d ic ia l p r o c e e d in g d id n o t “ im p a ir th e e xe c u ti v e b r a

n c h ’ s a b il it y to f u lf il l it s c o n s ti tu

ti o n a l d u ti e s ” )

. As noted by Pa

xto n , c o n s ti tutional or statutory provisions that restric t the rig ht to hold a public off

ice a re stric tly construed a g ainst ineligibility

. See I n re Francis , 186 S.W .3d 534, 542

Under Osborne’ s logic , it would seem that a cler k employ ed by the L eg islative Refer ence 5 L ibrary would be a me mber of the leg islative branc h. See Tex. Gov’t Code §§ 324.001-.010.
The Texas C o u rt o f Criminal Appea ls, in discussing prosec uting attorney s, came to the 6 opposite conclusion, stating that “[b] y establishing the office of county attorney under Article V, the authors of the Texas Constit ution place d those office rs within the J udicial depar tment.” Meshe ll v. State , 739 S.W .2d 246, 253 (Tex. Crim. App. 1987). We reje cted that conclusion in our analy sis of the issue, see Holmes v. Morales , 906 S.W .2d 570, 572-73 (Tex. App.—Austin 1995), rev’ d on other grounds , 924 S.W .2d 920 (Tex. 1996), and the Texas Supreme Court ag ree d, see Holmes , 924 S.W .2d at 923 (“We reje ct Holmes’ theory that judicial depar tment a nd judiciary are sy

nony mous. The court of appea ls corr ectly conclude d that the district attorney ’s office is not included in the meaning of ‘judiciar

y ’ bec ause the Texas Consti tution invests no j udicial power in that office .”).
5(Tex. 2006) (orig

. proce eding ); Dawkins v. Mey er , 825 S.W .2d 444, 448 (Tex. 1992); Hall v. Baum ,

452 S.W .2d 699, 702 (Tex. 1970). Considering the duties and functions perf ormed by attorney s in

g ener al, and considering the constitu t i o n as a whole, we conclude that attorney s do not become
members of

the judicial depa

rtment as compr ehende d by article I I of the Texas Constitution whe n they obtain a license from the State B ar. 7

Pax ton established as a matter of law that Osborne’ s basic premise, that an attorney
become s a member of the judicial depar tment as contemplated by article I I when he obtains a license throug h the State Ba

r, is incorre ct. We overr

ule Osborne’ s arg uments on appea l and aff irm the trial
court’s or ders g ranting summary judgme nt in favor of

Pax ton.

__________________________________________ David Pury ear , J ustice

Be fore J ustices Pury ear , Goodwin, and B ourland
Affir med Filed: June 9, 2016

As for Osborne’ s asser

tion that attorney s’ require d bar dues “a re a nalog ous to a tax” a

nd 7 violate the separ ation-of- power s doctrine by allowing the State Ba r to exercise tax authority over the executive bran ch , we overr ule this insufficiently briefe d and supported arg ument but note that requiring Pax ton to pay dues to maintain his law license does not amount to the State Ba r exercising authority over the office of the Attorne y Gene ral.
6